PARVIZIAN v. CALIFORNIA DEPARTMENT OF TRANSPORTATIONNo. B215608.

SYRUS PARVIZIAN, Plaintiff and Appellant,
v.
CALIFORNIA DEPARTMENT OF TRANSPORTATION et al., Defendants and Respondents.

Court of Appeals of California, Second District, Division Five.
Filed October 14, 2010.
Syrus Parvizian, in pro. per., for Plaintiff and Appellant.
Ronald W. Beals, Chief Counsel, Linda Cohen Harrel, Deputy Chief Counsel, Jill Siciliano-Okoye, Helen Lemmon-Alarcon for Defendant and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

This is an appeal from appellant Syrus Parvizian's lawsuit against his former employer, respondent State of California Department of Transportation. The operative first amended complaint brought six causes of action, titled Damages for Violation of Statutory Duty to Pay Wages and Compensation, Unpaid Wages, Accounting, Conversion, Money Had and Received, and Discrimination, Harassment and Retaliation in Violation of Government Code section 12940. Appellant had earlier filed similar, if not identical lawsuits, which were consolidated and were later dismissed.

Respondent's demurrer was sustained with leave to amend as to the causes of action for Damages of Violation of the Statutory Duty to Pay Wages and Compensation, Accounting, Conversion, and Money Had and Received. The court ruled that the claims were not properly pled, noting that "the state can only be sued if it authorizes a lawsuit, and you don't plead the proper statutory authority to do so."

The court overruled the demurrer to the cause of action for unpaid wages, which was brought under Labor Code sections 201 and 202.

The court found that the cause of action for violation of Government Code section 12940 had been dismissed with prejudice in the earlier case, and sustained the demurrer as to that cause of action without leave to amend.

Appellant elected not to amend his complaint. Respondent filed a motion for judgment on the pleadings on the cause of action under the Labor Code, on the defense of statute of limitations. The court granted the motion and dismissed the complaint.

On this appeal, appellant contends that the court erred in its ruling on the demurer and on the motion for judgment on the pleadings. We affirm.

The demurrer

In reviewing the sufficiency of a complaint against a general demurrer, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context, and treat the demurrer as admitting all material facts properly pleaded. When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. When it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment; if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) On appeal, the burden is on appellant to demonstrate that the trial court's ruling was an abuse of discretion. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 72.) We see no abuse of discretion here.

In the causes of action for Damages of Violation of the Statutory Duty to Pay Wages and Compensation, Accounting, Conversion, and Money Had and Received appellant alleged that on the termination of his employment he did not receive the severance pay due to him, was not properly compensated for his unused sick time and vacation time, that other money due to him was withheld, and that respondent kept his personal property. On each of these causes of action, appellant sought money damages in specified amounts.

Under the Tort Claims Act, "all claims for money or damages against local public entities" such as respondent must be presented to that entity in accord with the procedures set forth in the Act. (Gov. Code, § 905.) Where compliance with the Tort Claims Act is required, the plaintiff must allege compliance or circumstances excusing compliance. (San Leandro Police Officers Assn. v. City of San Leandro (1976) 55 Cal.App.3d 553, 559.) As the trial court found, appellant did not do so here.

Appellant's argument on this point is that his causes of action were based on contract, and that the Tort Claims Act does not apply to such causes of action. (Gov. Code, § 814; Roe v. State of California (2001) 94 Cal.App.4th 64.) It is well established that "in California [] public employment is not held by contract but by statute," and "`[t]he terms and conditions of civil service employment are fixed by statute and not by contract.' [Citations.]" (Miller v. State of California (1977) 18 Cal.3d 808, 813.) Appellant thus could not, and did not, sue under a contract, but instead alleged violation of the terms of his employment, which were statutory.

Appellant also argues that he substantially complied with the Tort Claims Act, arguing that his employment discrimination claim to the Department of Fair Employment and Housing served as sufficient notice. The doctrine of substantial compliance applies "Where a claimant has attempted to comply with the claim requirements but the claim is deficient in some way." (Connelly v. County of Fresno (2006) 146 Cal.App.4th 29, 38.) Under those circumstances, the claim may be said to be in compliance "`if it substantially complies with all of the statutory requirements . . . even though it is technically deficient in one or more particulars.' [Citation.]" (Ibid.) We do not see that an entirely different claim, on a different cause of action, can constitute substantial compliance with the Tort Claims Act. Moreover, his DFEH claim does not raise the allegations found in the cited causes of action in this complaint, and does not seek unpaid wages and so on, but instead alleges wrongful termination, unequal treatment, and harassment.

Appellant also argues that he could amend his complaint to state causes of action. When a plaintiff is given the opportunity to amend his complaint and chooses not to do so, "[t]he failure to amend . . . is an admission that plaintiff has stated the case as strongly as he can and there are no facts that could be alleged to cure the defect." (Cano v. Glover (2006) 143 Cal.App.4th 326, 330.)

As to the cause of action under Government Code section 12940, appellant argues that an administrative decision did not give rise to a res judicata effect. We do not understand that any ruling was made on that basis. Instead, the court dismissed the cause of action because it had already been dismissed with prejudice in an earlier action. Appellant argues that a dismissal without prejudice does not give rise to res judicata, but that is not the issue here. Finally, appellant points out that a ruling on demurrer is not a final order. This is correct, but irrelevant. The trial court here did not rely on a prior ruling on demurrer, but on a dismissal.

The judgment on the pleadings

Appellant's cause of action for unpaid wages alleged violations of Labor Code sections 201 and 202. As appellant notes, the statute of limitations is three years. (Code Civ. Proc., § 338, subd. (a).) His employment with respondent ended in 2003, and this complaint was not filed until late in 2007. The statute of limitations barred this action.

Appellant argues, however, that the statute was tolled, under the doctrine of equitable tolling, while appellant pursued his administrative remedies before the Department of Fair Employment and Housing. He contends that his complaint to that agency included the claim for unpaid wages, and argues that the statute began to run when he received from DFEH right to sue letter.

We do not see that appellant's administrative complaint included his claim for unpaid wages, and in any event do not believe that a DFEH complaint will toll the statute on a claim for unpaid wages under the Labor Code. "Though equity will toll the statute of limitations while a plaintiff, who possesses different legal remedies for the same harm, reasonably and in good faith pursues one, it will not toll the statute while a plaintiff, who has allegedly suffered several different wrongs, pursues only one remedy as to one of those wrong." (Aerojet General Corp. v. Superior Court (1986) 177 Cal.App.3d 950, 956.) The claim for discriminatory treatment and the claim for unpaid wages are, simply put, different wrongs.

Disposition

The judgment is affirmed. Respondent to recover costs on appeal.

We concur:

TURNER, P.J.

MOSK, J.


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